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.TSr:OGRAPHIC  MISCELLANY 


THE  LIBRARY 

OF 

THE  UNIVERSITY 
OF  CALIFORNIA 

LOS  ANGELES 


THE 

STENOGRAPHIC 
MISCELLANY 

J  903 


B.  0.  BAKER 

LAWYER 
DALLAS,  TEXAS 


THE  STENOGRAPHIC  MISCELLANY 

FOR  1903 


PHONETIC  SHORTHAND  PUBLICATIONS. 


Phonetic  Shorthand  Manual, $1.25 

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Phonetic  Shorthand   Pocket   Dictionary,    cloth,    Sl.'-'S;    flexible 

leather,  round  corners, 1.50 

Student's  Pocket  Reminder,  full-page  illustrations, 25 

Phonetic  Shorthand  Word-Book, 1.25 

The  Stenographic  Miscellany  for  1903,    cloth,  1.00 

fS~  Sent  postpaid,  upon  receipt  of  price  by  postal  or  express  order, 

or  by  draft. 

W.  W.  OSGOODBY,  Publisher, 

ROCHESTER,  N.  Y. 


THE 

Stenographic  Miscellany 

For  1903 


•*«. 

>. 

& 


W.  W.  OSGOODBY,  Publisher 

ROCHESTER,    N.  Y. 


COPYRIGHT,  1903,  BY  WILLIAM  W.  OSGOODBY. 


E.  R.  ANDREWS  PRINTING  Co. 

ROCHESTER,   N.  Y. 


Z57 

CONTENTS. 


The  Great  Smith  Family, 3 

Mr.  Bob  Sawyer's  Party, 6 

American  Sailor  at  Play, 17 

Only  a  Little  Way 18 

Romidus  and  Rome, 19 

The  Two  Orders, 21 

A  Valuable  Picture, 23 

Prime  Requisites, 26 

Big  Things  Lost, 26 

The  Telephonic  Burglary, 27 

The  Sun  Cooling  Off, 35 

What  Shall  it  Be, 37 

The  Old-Fashioned  Pocket, 38 

f£  Curious  Bridges, 38 

#  Nobody's  Child, 39 

>.  The  Captain  of  the  Ship, 42 

5  A  Stomach  Complaint, 43 

g  Powerful  Water  Jets, •.    .    .  47 

3  Hearing  by  Sight, 48 

What  is  Antiquity  f 49 

jj  A  Good  Stenographer, 50 

L  The  Training  of  the  Eye, 51 

z  Consider  the  End, 52 

=§  My  First  Bank  Deposit, 53 

Law  Office  Amanuenses, 54 

Scraps, 55 

3  A  Chicago  Lunch > 56 

P    What  is  Real? 57 

P    The  Monroe  Doctrine, 58 

Why  are  You  Writing? .  59 

A  Question  of  Speed, 59 

Cousin  Fanny 's  Story, 60 

Law  Report — Wilson  v .  McKay , 61 

Charge  to  a  Jury, 73 

Key  to  Law  Report, 75 


452188 


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Stenographic  Miscellany 


The  Great  Smith  Family.... '• 


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Mr.  Bob  Sawyer's  Party. 


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Mr.  Bob  Sawyer's  Party. 


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15 


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The  Stenographic  Miscellany. 


American  Sailor  at  Play. 


17 


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The  Stenographic  Miscellany. 


ONLY  A  LITTLE  WAY. 


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Romulus  and  Rome. 


19 


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The  Two  Orders. 


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25 


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26 


Tlte  Stenographic  Miscellany. 


Prime  Requisites *r^- 


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The  Telephonic  Burglary. 


27 


The  Telephonic  Burglary / 


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The  Sun  Cooling 


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THE  OLD-FASHIONED  POCKET. 


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Consider  the  End:.  ______  ts-. 


My  First  Bank  Deposit. 


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SUPREME  COURT—  Before  Mr.  Justice  HUBBELL,  and  a  jury. 
OBBIN  WILSON 


for  plff 

vs. 

.  ,  ,  ,_  James  R.  Kellv.  for  deft. 

ARTHUB  MCKAY. 

Elmira,  N.  Y.,  February  7,  1904. 
Wilson,  Orrin,  sworn. 
To  Mr.  Carter: 

Q.  Where  do  you  reside?     A.  In  Byron. 

Q.  You  have  lived  there  how  long?     A.  Three  and  a  half  years. 

Q.  Before  going  there,  where  did  you  live?     A.  In  Buffalo. 

Q.  What  is  your  business?  A.  I  am  president  of  a  manufac- 
turing company. 

Q.  Have  you  any  other  business?     A.  Yes,  sir. 

Q.  You  did  other  business  within  the  last  six  months,  and  at 
and  after  the  time  of  the  transaction  in  this  action?  A.  Yes,  sir. 

Q.  What  was  your  business,  in  connection  with  this  matter? 
A.  I  was  president  of  an  iron  company,  and  engaged  in  raising 
money  for  certain  purposes. 

Q.  Had  you  had  any  experience  in  mining?  A.  I  was  superin- 
tendent of  mines,  and  for  a  number  of  years  I  have  been  connected 
with  the  business,  in  one  way  and  another. 

Q.  You  knew  of  the  iron  mine  in  question,  located  in  the  north- 
ern part  of  the  state?  A.  Yes,  sir. 

Q.  How  long  have  you  known  about  it?  A.  The  first  I  knew 
about  it,  was  about  six  or  eight  months  before  the  contract  in 
question  was  made. 

Q.  Describe  briefly  the  situation  of  the  mine  and  mineral  de- 
posits there  ?  A.  The  mine  is  situated  three  or  four  miles  from 
the  nearest  railroad  station.  It  is  a  mineral  that  contains  iron 
and  sulphur. 

Q.  How  is  the  foreign  matter  taken  out  of  the  mineral  ?  A. 
They  use  a  concentrating  plant  to  take  out  the  foreign  matter,  so 
that  the  product  will  run  as  high  as  possible  in  sulphur.  That  is 
used  in  making  sulphuric  acid,  which  is  used  in  refining  crude 
oil  and  in  making  paper. 

Q.  Sulphuric  acid  is  the  valuable  element  in  the  ore?  A.  Yes, 
sir. 

Q.  In  order  to  make  this  ore  of  value,  must  it  go  through  a. 
crushing  process?  A.  Yes,  sir,  and  concentrating. 

Q.  Is  there  any  place  in  that  vicinity  where  that  can  be  done  ? 
A.  Yes,  sir;  Mr.  McKay  does  it. 


76  The  Stenographic  Miscellany. 

Q.  After  that  is  done,  is  there  occasion  for  shipping  the  ore?- 
A.  Yes,  sir. 

Q.  What  is  the  next  process,  after  crushing?  A.  Taking  out 
as  much  foreign  matter  as  possible,  and  then  it  is  shipped. 

Q.  What  takes  place  after  that?     A.  It  is  burnt. 

Q.  There  is  no  place  in  the  immediate  vicinity  of  the  mines, 
where  the  burning  process  can  be  had?  A.  No,  sir. 

Q.  And  it  is  necessary  that  it  be  shipped  away?     A.  Yes.  >ir. 

Q.  State  in  regard  to  the  matter?  A.  Before  I  had  anything 
to  do  with  it,  I  looked  over  the  property  sufficient  to  satisfy  my- 
self that  the  quantity  was  almost  inexhaustible.  I  found  old 
shafts  sunk  down  to  a  considerable  depth,  and  I  saw  hills  of  it 
through  which  they  were  then  cutting  and  opening  to  it,  and  the 
supply  seemed  to  be  inexhaustible. 

Q.  Was  there  any  question  in  regard  to  this  supply  continuing 
for  at  least  ten  years?  . 

Objected  to,  as  calling  for  a  conclusion  of  the  witness. 

Q.  Can  you  make  that  a  little  more  definite,  and  say  how  long 
a  period  it  would  last,  at  a  certain  amount  of  shipment  a  day — 
say,  a  shipment  of  eighty  tons  a  day? 

Objected  to,  as  immaterial  and  incompetent,  and  as  call- 
ing for  the  conclusion  of  the  witness,  and  as  incompe- 
tent on  the  measure  of  damages. 

The  Court: — You  may  show  by  the  witness  the  number  of 
tons  of  ore  there  was  in  that  mine,  if  you  can. 

The  question  was  withdrawn. 

Q.  Have  you  had  experience  in  the  construction  of  railroads? 
A.  I  have. 

Q.  To  what  extent  ?  A.  I  was  general  manager  of  seven  hun- 
dred miles  that  is  now  part  of  the  Pennsylvania  Railroad,  and  had 
charge  of  building  about  three  hundred  miles  of  it. 

Q.  You  had  a  knowledge  of  the  cost  of  constructing  railroads,, 
at  the  time  of  the  making  of  this  contract?  A.  Yes,  sir. 

Q.  Did  you  observe  the  right  of  way  over  which  it  was  proposed 
to  build  this  road?  A.  I  did. 

Q.  When  was  your  first  talk  with  Mr.  McKay,  in  regard  to  the 
construction  of  a  railroad  from  this  mine  to  the  Rome  and  Water- 
town  Railroad  ?  A.  It  was  on  the  twenty-eighth  of  July. 

Q.  That  was  about  a  month  before  the  making  of  these  papers?" 
A.  Yes,  sir. 

Q.  Where  did  you  see  him?     A.  At  the  mines. 


Key  to  Law  Report.  77 


Q.  Before  that  time,  had  you  received  any  word  from  him? 
A.  Not  directly. 

Q.  You  went  there  to  see  him?     A.  Yes,  sir. 

Q.  Did  you  have  a  conversation  with  him  there?     A.  Yes,  sir. 

Q.  Who  else  was  present  at  the  conversation?     A.  Mr.  Barton. 

Q.  Anybody  else?     A.  No. 

Q.  Barton  was  one  of  the  parties  who  signed  the  contract,  later 
•on  ?  A.  Yes,  sir. 

Q.  Did  you  have  a  talk  with  them  in  regard  to  the  construction 
•of  the  railroad?  A.  Yes,  sir. 

Q.  How  long  a  time  did  the  conversation  take?  A.  About  a 
•day,  1  should  judge. 

Q.  Give  us  an  outline  of  that  talk. 

Objected  to,   as   immaterial   and   incompetent,  and  that  it 

was  afterwards  embodied  in  the  contract. 
Mr.  Carter: — It  is  not  with  a  view  of  altering  the  terms 
of    the  agreement,  that    I  ask  this.     Everything    that 
was  material  was  not  embodied  in  the  contract. 

Q.  Was  there  any  talk,  aside  from  this  one  that  you  speak  of, 
subsequent  to  the  28th  of  July  and  before  the  making  of  the  con- 
tract? A.  Yes,  sir. 

Q.  When  was  that?  A.  That  was  on  the  26th  and  27th  of 
August. 

Q.  The  contract  was  executed  on  the  28th?  A.  On  the  27th  of 
August. 

Q.  At  whose  instance  did  you  go  there  on  the  26th?  A.  I  took 
Clifford  and  his  attorney  there. 

Q.  He  is  the  third  party  to  the  agreement?     A.  Yes,  sir. 

Q.  Did  you  have  any  conversation  with  regard  to  the  contract, 
on  the  26th?  A.  Yes,  sir;  we  talked  half  the  day  and  all  the 
•evening  about  it. 

Q.  On  the  following  day,  the  paper  was  signed?  A.  Yes,  sir. 
We  drove  up  to  the  mines,  on  that  day. 

Q.  Do  you  know  whether  that  paper  was  recorded  or  not? — I 
show  you  a  paper,  and  ask  whether  that  is  a  copy  of  the  agree- 
ment made  on  that  day?  A.  There  was  but  one  copy  made. 
Clifford's  attorney  took  that. 

Q.  Examine  this,  and  state  whether  it  is  a  correct  copy  of  that 
paper?  A.  It  is. 

A  certified  copy  of  the  record  of  the  contract  was  offered 

in  evidence,  dated  August  27,  1902. 
Objected  to,  as  immaterial  and  incompetent,  and  not  the 

best  evidence. 
Received;  exception.     Marked  Exhibit  1. 


78  The  Stenographic  Miscellany. 

Q.  Was  there  a  talk  had  in  your  presence  with  regard  to  re- 
cording this  paper?  A.  I  don't  think  there  was,  at  that  time; 
there  was  afterwards. 

Q.  Did  McKay  take  part  in  that  conversation?  A.  I  don't 
think  he  did. 

Q.  This  paper  I  have  shown  you  is  a  copy  of  the  contract,  and 
the  same  as  is  set  forth  in  the  complaint?  Yes,  sir. 

Q.  How  long  were  you  there,  after  the  execution  of  the  paper? 
A.  It  was  executed  about  eleven  o'clock  at  night,  and  I  left  about 
seven  o'clock  the  next  morning. 

Q.  Did  you  see  McKay  again,  before  you  received  a  letter  from 
him  stating  that  the  deal  was  off?  A.  No,  .sir. 

Q.  I  show  you  a  letter  and  envelope,  and  a>;k  if  they  were  re- 
ceived by  you?  A.  They  were. 

The  letter  and  envelope  were  put  in  evidence — letter  dated 
August  30,  1902.     Exh.  2,  3. 

Q.  When  did  you  first  see  the  defendant  again,  after  that  time? 
A.  On  the  eleventh  of  September. 

Q.  That  was  where?     A.  In  New  York,  at  the  Grand  Hotel. 

Q.  Was  that  the  first  time  you  saw  him  after  that?  A.  Yes, 
sir. 

Q.  Who  was  present?     A.  Barton,  and  McKay,  and  myself. 

Q.  Clifford  was  not  there,  at  that  time?     A.  Xo,  sir. 

Q.  Prior  to  that  time,  had  you  delivered  a  letter  for  Clifford  to 
the  defendant?  A.  Yes,  sir. 

McKay,  Arthur,  sworn. 
To  Mr.  Carter: 

Q.  You  are  the  defendant  in  this  action?     A.  Yes,  sir. 

Q.  I  show  you  a  letter;  do  you  recall  the  contents  of  that?  A. 
I  couldn't  say  whether  it  was  exactly  like  that,  but  it  was  prac- 
tically the  same  thing. 

Q.  "So  far  as  you  know,  it  was  the  same?     A.  I  couldn't  -ay. 

Q.  Do  you  know  where  the  original  of  that  letter  is?  A.  Xor 
sir. 

Q.  Was  it  among  the  papers  which  you  delivered  to  your  at- 
torney in  this  case?  A.  I  don't  know  whether  it  was  or  not.  I 
had  a  letter  from  Mr.  Clifford. 

Q.  Is  this  the  letter,  which  your  attorney  has  handed  to  me?- 
Did  you  receive  that  in  Xew  York  city,  at  the  time  of  its  date? 
A.  Yes,  sir. 


Key  to  Law  Report.  79. 


The  letter  was  offered  in  evidence. 

Objected  to,  as  immaterial  and  incompetent,  and  not  bind- 
ing upon  the  defendant. 

Letter  marked  Exh.  4,  for  identification. 
Wilson,  Orrin,  recalled. 
To  Mr.  Carter : 

Q.  I  show  you  exhibit  4 — have  you  ever  seen  that  letter  before? 
A.  I  did,  on  September  10,  1902. 

Q.  Did  you  see  it  before  it  was  delivered  to  the  defendant?  A. 
Yes,  sir. 

Q.  Whom  did  you  take  it  from?     A.  From  Mr.  Clifford. 

Q.  Did  you  make  a  copy  of  it,  at  that  time  ?     A.  I  did. 

Q.  And  then  did  what  with  it?  A.  Left  it  at  the  Grand  Hotel 
for  Mr.  McKay. 

Q.  You  sav  you  had  a  talk  when  McKay  and  Barton  were  pres- 
ent? A.  I  did. 

Q.  Was  exhibit  4  shown  there,  and  commented  upon?  A.  Yes, 
sir. 

The  letter  was  again  offered  in  evidence,  dated  September 

10,  1902,— Exh.  4. 

Objected  to,  as  immaterial,  incompetent,  and  irrelevant. 
Received;  exception. 

Q.  State  what  took  place  in  the  conversation  between  yourself 
and  Barton  and  McKay  ? 

Mr.  Kelly: — I  object  to  any  conversation,  as  not  binding 
upon  the  defendant.     Received. 

Q.  Who  spoke  first,  and  what  was  said?  A.  I  asked  McKay 
whether  he  had  got  the  letter  I  had  left  in  his  box  the  night  before. 
He  said  he  had,  and  took  that  letter  out.  I  asked  if  he  was  going 
to  comply  with  the  request.  He  said  there  was  no  use  of  that — 
that  the  lease  was  put  up  as  collateral  security  with  some  one 
else.  I  asked  if  he  didn't  know  that  at  the  time  the  contract  was 
made.  He  said  he  didn't  understand  it  was  in  the  agreement. 
Then  he  went  on  to  explain  that  he  had  sold  a  quarter  interest  in 
the  property  for  $25,000,  under  an  agreement  with  the  pui-chaser 
that  he  was  to  have  a  certain  amount  per  ton  until  his  $25,000 
was  returned,  and  that  the  lease  was  put  up  as  collateral  security 
for  that.  Barton  and  he  then  had  some  words  about  this  not 
coming  out  at  the  time  the  agreement  was  made. 


The  Stenographic  Miscellany. 


Mr.  Kelly:  —  I  object  to  any  conversation  between  Barton 
and  McKay,  as  not  binding  upon  the  defendant. 

—  He  said,  "What  did  you  sign  that  contract  for,  if  you  couldn't 
iullil  it?"  He  said  he  didn't  know  it  was  in  the  contract.  Bar- 
ton said,  "What  did  you  suppose  we  wanted  the  contract  for.  if 
we  couldn't  have  the  lease?"  That  was  about  all.  It  was  re- 
peated several  times. 

Q.  Do  you  recall  anything  further  that  was  said  during  the 
<jonversation?  A.  I  made  the  remark  that  that  was  the  most  im- 
portant part  of  the  thing,  because  in  case  of  any  physical  or  fi- 
nancial difficulty  happening  to  him.  we  wanted  to  be  in  a  position 
to  go  on  and  fulfill  the  terms  of  the  lease,  so  as  to  make  the 
road  valuable.  He  said  he  couldn't  put  up  the  lease,  and  that 
that  was  all  there  was  of  it. 

Q.  Was  it  said  at  that  time,  by  McKay  to  Barton,  in  words  or 
substance,  that  Barton  had  no  interest  in  the  contract  ? 

Objected  to,  as  leading.     Received;  exception. 

A.  Yes,  sir,  that  was  mentioned.  McKay  said  Barton  had  no 
right  in  the  lease. 

Q.  And  no  interest  in  this  contract?  A.  That  he  had  no  right 
in  the  lease,  or  in  the  stock  of  the  railroad  that  was  to  be  organ- 
ized, of  which  I  was  to  have  one-half  and  Barton  and  McKay  were 
«ach  to  get  a  quarter. 

Q.  1  understood  you  to  say,  you  had  the  same  talk  at  the  time 
of  the  execution  of  the  contract,  as  you  had  at  the  interview  in 
the  hotel?  A.  We  did. 

Q.  Was  there  any  further  talk  at  that  time?  A.  Xot  that  I 
remember. 

Q.  When  was  your  next  talk  on  this  subject?  A.  We  arranged 
for  a  meeting  at  the  Astor  House  on  the  next  day.  McKay  and 
Barton  and  Clifford  and  myself  were  there  at  that  time. 

Q.  What  occurred?  A.  McKay  repeated  the  same  thing  —  that 
it  was  not  possible  for  him  to  put  up  this  lease.  He  said  he  had 
sold  a  quarter  interest  in  the  property  for  $25,000,  and  the  man 
was  to  repay  that  amount  at  so  much  a  ton  of  ore  shipped,  and 
that  the  lease  was  security  for  the  fulfilment  of  that  contract. 

Q.  What  was  said,  in  response  to  that?  A.  We  went  over  the 
same  ground  as  to  why  he  had  not  said  that  at  the  time  the  con- 
tract was  signed  —  that  it  was  a  very  important  part  of  it,  in  the 
event  of  his  getting  into  any  difficulty,  that  we  might  go  on  and 
fultill  what  he  had  undertaken  to  do  in  order  to  get  freight  for 
the  road.  Barton  said  to  him,  "Why  didn't  you  tell  us  this,  at  tho 
time  the  contract  was  made,  and  save  us  all  this  trouble?" 


Key  to  Law  Report. 


Q.  Was  there  any  offer  at  that  time  to  fulfill  the  agreement? 
A.  No,  sir. 

Q.  That  was  the  last  talk  that  you  had  with  McKay,  before  the 
time  of  the  commencement  of  this  action  ?  A.  Yes,  sir. 

Q.  Describe  the  amount  of  the  loss  you  have  sustained  by  rea- 
son of  the  contract  not  having  been  carried  out,  giving  the  details  ? 

Objected  to,  as  immaterial,  incompetent  and  irrelevant, 
and  not  the  proper  method  of  establishing  the  measure 
of  damages. 

Ov erruled ;  exception. 

Q.  State  what  the  profits  of  the  enterprise  would  have  been,  if 
you  can  so  state,  if  the  contract  had  been  carried  out  and  the  road 
had  been  constructed? 

Objected  to,  as  before. 

Q.  Do  you  know  the  cost  of  the  operation  of  a  railroad  of  this 
kind,  during  the  last  six  months,  and  at  all  times?  A.  I  have 
had  experience  in  that,  and — 

Q.  What  experience  have  you  had  in  regard  to  the  cost  of  oper- 
ating a  railroad?  A.  For  a  number  of  years  I  have  been  super- 
intendent of  a  railroad,  and  I  have  had  charge  of  operating  other 
roads. 

Objected  to,  upon  the  ground  that  the  witness  was  not 
shown  to  be  qualified  to  answer. 

Q.  Who  did?  A.  McKay  and  I.  I  know  that  to  be  the  fact. 
On  the  basis  of  the  contract,  of  eighty  tons  a  day,  at  sixty  cents 
a  ton,  the  receipts  would  be  $48  a  day,  or  $1,248  a  month  of 
twenty-six  working  days.  The  contract  provided  that  one-half  of 
those  receipts  should  be  paid  to  the  trustee  of  the  mortgage,  to- 
ward retiring  the  bonds.  The  contract  next  provides  that  we 
should  get  nothing  out  of  it  until  the  bonds  were  paid.  If  we 
take  one-half  of  the  guaranteed  receipts,  that  would  be  $624  a 
month.  The  balance,  after  deducting  the  cost  of  operation,  would 
be  $224,  or  a  total  of — 

Objected  to. 

Q.  What  was  included  in  the  operation  of  the  road?  A.  An 
engineer  and  two  men  and  the  coal ;  and  as  they  expected  to  make 
only  two  trips  a  day,  over  the  road,  the  balance  of  their  time  they 
could  spend  in  working  along  the  road. 

Q.  In  making  this  calculation,  of  the  cost  of  operation,  you 
took  into  consideration  the  expense  of  the  engineer  and  fireman? 


82  Thi!  Stenographic  Miscellany. 

A.  We  intended  to  put  on  a  ten-ton  engine,  as  the  grade  was  down 
all  the  way  from  the  mine. 

Q.  Do  you  say  that  within  your  experience  the  amount  you 
have  given  us  would  thoroughly  cover  the  expense  of  operation? 
A.  Yes,  sir.  We  deducted  $400  from  the  other  half  of  the  earn- 
ings, and  it  made  a  total  of  $848  that  would  go  to  the  retirement 
of  the  bonds. 

All  this  evidence  was  taken  under  the  objection  and  excep- 
tion of  the  defendant's  counsel. 

— At  this  rate,  both  the  principal  and  interest  on  the  bonds  would 
be  paid  in  two  and  a  half  years. 

Q.  What  was  the  length  of  time  that  this  agreement  was  to 
run?  A.  Ten  years  from  its  date. 

Q.  How  much  time  had  expired  on  the  lease,  at  the  time  of  the 
making  of  the  contract?  A.  About  one  year. 

Q.  Now,  go  on.  A.  Under  the  contract,  I  was  to  have  one-half 
the  stock  of  the  road,  and  would  be  entitled  to  one-half  of  the 
earnings  after  the  bonds  were  retired. 

Q.  The  contract  provided  for  the  amount  of  money  that  was  to 
be  expended  by  the  parties  in  the  construction  of  the  road?  A. 
Yes,  sir. 

Q.  What  would  have  been  the  value,  within  your  experience,  of 
this  road,  constructed  according  to  the  terms  and  outlines  of  this 
contract,  at  the  time  of  its  completion?  A.  $16,000. 

Q.  Under  the  contract,  you  were  to  have  a  half  interest  in  that 
road?  A.  Yes,  sir. 

Q.  Go  on  with  your  computation.  A.  The  McKay  lease  was 
for  ten  years.  One  year  had  expired  when  the  contract  was  made. 
The  lease  would  have  run  three  and  a  half  years  before  I  should 
have  had  any  revenue  from  my  ownership.  During  the  balance  of 
the  term  of  the  lease,  I  should  have  one-half  of  the  receipts,  after 
the  payment  of  expenses. 

Q.  What  do  you  compute  that  amount  at?  A.  For  the  six 
years  and  a  half,  $15,000. 

Q.  What  do  you  say,  as  to  whether  there  would  have  been  op- 
portunity for  further  shipment  than  the  eighty  tons  provided  for 
in  the  contract? 

Objected  to. 

Q.  What  was  the  length  of  this  road?  A.  Approximately, 
three  miles. 


Key  to  Law  Report.  83 


To  Mr.  Kelly:  — 

Q.  How  much  do  you  figure  that  the  expense  of  running  the 
road  would  be  ?  A.  Fifteen  dollars  a  day. 

Q.  How  much  would  you  pay  the  engineer?  A.  About  two  dol- 
lars a  day. 

Q.  How  much  would  you  pay  the  two  men?  A.  About  three 
dollars. 

Q.  How  much  for  the  coal?     A.  McKay  and  I  estimated — 

Q.  What  were  the  other  items  that  go  to  make  up  your  damage 
of  $30,000  ?  A.  When  the  bonds  were  retired,  I  would  own  one- 
half  the  road,  which  would  be  $8,000.  If  the  shipments  did  not 
increase,  the  rate  of  freight  decreased  after  the  bonds  were  paid, 
from  sixty  to  twenty-five  cents  a  ton  for  the  paper  company's 
shipments,  and  fifty  cents  for  McKay's  shipments,  would  make  an 
average  of  $200  a  month  for  my  share  of  the  net  earnings  for  six 
and  a  half  years,  the  unexpired  term  of  the  lease. 

Q.  You  claim  that  you  were  damaged  in  $15,000.  A.  I  should 
still  have  owned  one-half  of  the  road. 

Q.  That  would  make  $23,000?  A.  Yes,  sir,  but  it  was  under- 
stood at  that  time  that  the  capacity  of  the  mills  would  be  in- 
creased, and  every  assurance  was  given  that  the  shipments  would 
be  increased  also. 

Q.  You  base  your  balance  of  $30,000  purely  upon  the  increased 
shipments  and  the  increase  in  the  capacity  of  the  mills?  A. 
From  Mr.  McKay's  assurance  that  they  would  be. 

Q.  When  did  you  first  see  McKay?     A.  On  the  28th  of  July. 

Q.  How  did  you  come  to  meet  him?     A.  Through  Mr.  Barton. 

Q.  it  is  a  fact  that  Barton  took  you  up  there  to  meet  McKay, 
and  introduced  you  as  a  promoter,  for  you  to  get  capital  to  build 
the  road?  A.  Xo,  sir.  I  went  by  myself,  and  met  them. 

Q.  You  didn't  know  McKay,  until  you  were  introduced  by  Bar- 
ton ?  A.  Xo,  sir. 

Q.  You  went  up  there  for  that  purpose?  A.  I  went  to  look  it 
over,  before  bringing  it  to  the  attention  of  capitalists. 

Q.  Other  than  this  one  time,  did  you  ever  see  that  mine?  A.  I 
saw  it  the  first  time  I  saw  McKay. 

Q.  How  many  times  have  you  seen  it?     A.  Twice. 

Q.  When  was  the  second  time?  A.  The  day  we  made  the 
contract. 

Q.  Were  you  ever  interested  in  this  kind  of  business  before? 
A.  Yes,  sir. 

Q.  Where  were  you  interested  in  it  ?     A.  Mineral  City,  Va. 

Q.  Do  you  remember  whether  or  not  there  were  any  interline- 
ations in  the  original  contract  that  you  made?  A.  Yes,  sir. 


84  The  Stenographic  Miscellany. 

Q.  It  was  pretty  well  filled  with  interlineations?  A.  As  I  re- 
member it,  it  was  drawn  on  yellow  paper,  and  had  interlineations. 

Q.  Was  every  interlineation  signed?  A.  Yes,  sir,  all  \ve  could 
find  were  initialled  by  the  attorney. 

Q.  After  this  letter  of  August  third  was  received  by  you  from 
the  defendant,  did  you  reply  to  him?  A.  Yes,  sir. 

Q.  Is  this  the  letter  that  you  sent  to  Mr.  McKay?     A.  Yes.  -ir. 

(.}.  After  you  received  that  letter,  did  you  have  any  knowledge 
as  to  whether  he  was  doing  any  work  under  the  contract?  A.  I 
had  not.  When  he  said  the  deal  was  off,  I  supposed  it  was 
stopped. 

Q.  Is  it  not  a  fact  that  McKay  told  you  on  September  tenth 
that  he  could  not  assign  that  lease  to  you  because  it  had  been  as- 
signed as  collateral  security  for  a  loan?  A.  No,  sir,  he  did  not; 
it  is  as  I  have  stated. 

Q.  Didn't  you  and  Clifford  and  Barton  and  McKay  agree  at 
that  time  that  this  clause  with  reference  to  his  assigning  the 
lease  should  be  waived?  A.  Xo,  sir.  Xo  such  agreement  ever 
took  place. 

Q.  Didn't  he  deliver  to  you  a  copy  of  his  lease  of  the  mineral 
lands?  A.  I  think  he  did* 

Q.  Do  you  know  whether  Clifford  ever  had  a  copy  of  it?  A.  Wo 
were  not  satisfied  that  it  was  a  copy  of  it.  We  had  considerable 
doubt  about  that. 

Q.  Do  you  know  whether  a  copy  of  it  was  delivered  to  Clifford  ? 
A.  I  do  not. 

Q.  This  railroad  was  to  be  narrow  gauge?     A.  Yes,  sir. 

The  plaintiff  here  rested. 

Mr.  Kelly  moved  for  a  dismissal  of  the  complaint,  upon  the 
grounds : 

1.  That  it  nowhere  appeared  in  the  case  that  the  plaintiff 

had  done  anything  under  the  terms  of  the  contract  to- 
ward carrying  out  his  part  of  it.  and  that  he  was 
therefore  in  no  position  to  maintain  the  action. 

2.  That  it  appeared  that  Barton  was  one  of  the  parties  to 

the  contract  and  that  although  he  had  no  interest  in 
the  lease  he  should  have  been  made  a  party  to  the 
action. 

3.  That  the  plaintiff  had  not  furnished  proof  sufficient  to 

establish  his  cause  of  action. 

Denied;  exception. 


Key  to  Law  Report. 


The  Court  charged  the  jury,  as  follows: 

Gentlemen  of  the  jury: — On  the  27th  day  of  August  last,  the 
defendant  in  this  action  was  the  possessor  of  a  lease  of  certain 
mining  privileges  in  Wayne  county.  The  mine  was  distant  from 
the  nearest  railroad  point  some  three  miles.  On  that  day,  a  con- 
tract was  entered  into  between  the  defendant  and  one  Barton,  par- 
ties of  the  first  part,  Mr.  Clifford,  party  of  the  third  part,  and  the 
plaintiff  as  party  of  the  second  part;  and  by  the  terms  of  that 
contract  it  was  provided  that  the  party  of  the  first  part  should 
organize  a  railroad  corporation,  and  that  Clifford,  if,  after  an 
examination  of  the  lease  and  of  the  minerals  the  same  were  found 
satisfactory  to  him,  should  provide  funds  not  to  exceed  the  sum 
of  $20,000  for  the  construction  of  this  road,  for  which  Clifford 
•was  to  receive  bonds  of  the  road,  secured  by  a  mortgage  upon  its 
property,  to  the  amount  of  $30,000.  The  parties  of  the  first  part 
agreed  to  transfer  and  assign  the  lease  held  by  the  .defendant  for 
the  mining  privileges  to  a  trustee  to  be  named  in  the  mortgage 
and  also  agreed,  for  the  sum  of  $7,500  to  be  advanced  to  them  by 
Clifford,  to  provide  rights  of  way,  grade,  and  lay  ties  and  rails 
over  the  same,  and  to  construct  a  suitable  bridge  across  the  river 
which  was  to  be  crossed  by  the  railroad,  payments  to  be  made  as 
the  work  progressed. 

Three  days  after  the  execution  of  this  contract,  the  defendant 
informed  the  plaintiff  by  letter  that  the  agreement  was  off,  ow- 
ing to  certain  conditions  which  he  mentioned  and  to  which  your 
attention  has  been  called  by  counsel. 

The  plaintiff  brings  this  action  to  recover  damages  which  he 
claims  to  have  sustained  by  reason  of  a  breach  of  the  agreement 
on  the  part  of  the  defendant.  You  have  heard  the  testimony,  and 
have  listened  to  the  arguments  of  counsel,  and  it  is  unnecessary 
that  I  should  call  your  attention  further  to  the  evidence.  The 
questions  for  your  consideration  are,  whether  there  has  been  a 
breach  of  the  contract  by  the  defendant,  and  if  so  what  amount 
of  damage  has  been  suffered  by  the  plaintiff. 

The  plaintiff  says  that  after  the  receipt  of  this  letter  from  the 
defendant,  the  parties  to  the  agreement  had  a  meeting  in  New 
York,  and  that  at  that  meeting  the  defendant  declined  to  go  on 
and  construct  the  road.  He  has  introduced  evidence  of  a  letter 
written  by  Clifford  in  which  Clifford  asked  the  defendant  to  per- 
form his  part  of  the  agreement  so  that  he  could  fulfill  on  his  part. 
The  part  that  Clifford  wished  him  to  perform  at  that  time,  was 
to  deliver  to  him  a  copy  of  this  lease.  The  defendant  says  he  did 
this  immediately  upon  his  return  home.  He  has  given  evidence 
tending  to  show  that  after  the  receipt  of  that  copy  by  Clifford, 
Clifford  declined  to  advance  the  money.  You  remember  that  in 


85  The  Stenographic  Miscellany. 

the  contract  Clifford  had  the  option  whether  to  advance  the  money 
after  an  examination  of  the  lease  and  the  minerals.  Of  course, 
the  defendant  could  not  be  expected  to  purchase  the  right  of  \vay, 
or  to  buy  rails  and  lay  ties,  until  money  was  provided  for  that 
purpose.  If  Clifford  was  ready  and  willing  to  advance  the  money, 
and  still  the  defendant  failed  to  do  it,  that  was  quite  a  different 
thing.  If  it  is  true  that  after  an  examination  of  the  lease  Clif- 
ford did  decline  to  advance  money  with  which  the  defendant 
might  perform  his  part  of  the  contract,  then  you  will  have  very 
little  difficulty  in  finding  that  the  defendant  was  not  respon- 
sible for  a  breach  of  the  contract. 

A  good  deal  has  teen  said  in  reference  to  the  failure  of  the  de- 
fendant to  assign  this  lease  to  the  trustee.  The  mortgage  was  to 
have  teen  executed  by  the  corporation ;  and  there  is  no  evidence 
that  any  corporation  was  formed  or  that  the  mortgage  was  ever 
executed,  or  that  there  was  ever  any  trustee  named.  Of  course, 
until  all  these  things  were  clone  the  defendant  could  not  make 
such  a  delivery.  That  would  not  excuse  him  for  declining  to  de- 
liver the  lease,  however,  if  he  did  decline ;  and  the  testimony  of 
the  defendant  and  Mr.  Wilson  will  be  considered  upon  this 
question. 

If  you  come  to  the  conclusion,  after  a  careful  consideration  of 
the  evidence,  that  there  has  been  a  breach  of  the  contract  on  the 
part  of  the  defendant,  your  verdict  will  award  to  the  plaintiff 
such  damages  as  he  has  sustained.  He  has  testified  that  the 
value  of  one-half  of  this  road,  that  he  would  have  been  entitled 
to  under  the  contract  after  the  indebtedness  was  paid,  would  be 
$8,000.  That  is  the  amount  .your  verdict  will  state,  if  you  find 
in  his  favor,  the  court  withdrawing  from  your  consideration  the 
other  items  of  damage  which  have  been  mentioned  during  the 
trial  of  the  case. 

Take  the  case,  gentlemen,  and  carefully  consider  each  item  of 
evidence  that  has  been  given,  giving  to  each  part  of  the  testimony 
the  weight  to  which  you  think  it  entitled,  and  render  such  a  ver- 
dict as  in  your  judgment  you  think  its  importance  demands.  The 
decision  of  every  question  of  fact  in  the  case  rests  with  you,  and 
the  responsibility  of  a  correct  finding  rests  with  you  and  not  with 
the  court.  It  would  not  be  proper  that  I  should  express  or  inti- 
mate any  opinion  as  to  what  your  finding  should  be,  but  your 
verdict  should  be  the  expression  of  your  own  best  judgment. 

Mr.  Carter  asked  the  court  to  charge,  that  if  the  jury  find 
that  the  defendant  did  refuse  to  carry  out  his  part  of 
the  agreement,  their  verdict  should  be  for  the  plaintiff. 

So  charged. 


Key  to  Law  Report. 


87 


Mr.  Carter  excepted  to  the  withdrawal  by  the  court  of  the 
other  items  of  damage  claimed. 

The  jury  rendered  a  verdict  for  the  plaintiff  for  $4,800. 

Mr.  Kelly  asked  the  court  to  set  aside  the  verdict,  as  con- 
trary to  the  law  and  against  the  weight  of  the  evi- 
dence, and  upon  all  the  grounds  stated  in  section  999 
of  the  Code  of  Civil  Procedure. 

The  motion  was  entertained,  to  be  argued  later. 


•'>.  BAKER 
LAWYER 
UALLAS,  TEXAS 


UNIVERSITY  ot 
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